Furman‘s Mythical Mandate

This Article argues for the rescue and reform of Supreme Court doctrine regulating capital sentencing trials under the Eighth Amendment. Many legal commentators, both liberal and conservative, including several members of the Supreme Court, have concluded that the Court’s regulation of capital sentencing trials is a disaster. The repeated criticisms rest on a commonly accepted view about a principal goal of capital sentencing regulation. The prevailing account, fueled by the rhetoric of the Justices, stems from the notion that Furman v. Georgia, 408 U.S. 208 (1972), revealed a mandate of consistency in the use of the death penalty that the Court has struggled to fulfill. However, this Article shows that consistency is implausible as an Eighth Amendment aspiration and that the Court has never seriously pursued consistency after Furman. The Court has focused almost entirely on promoting expansive individualized consideration of capital offenders, a goal at odds with consistency. The problem is that the Court’s continuing rhetorical commitment to Furman‘s mythical mandate has cast doubt on the value and legitimacy of individualization and has diverted attention from efforts to clarify why individualization serves Eighth Amendment ends. In defense of the doctrine, the Article provides an Eighth Amendment theory for individualization–one founded on avoiding retributive excess. The Article also shows, however, that this theory calls for reforms that could further assure that only the deserving receive the death penalty.